Free ESA, PIP and DLA Updates

With over 140,000 subscribers our fortnightly updates bulletin is the UK's leading source of benefits news. Get the facts about what's changing, how it affects you and how to prepare. Get your free benefits updates now.

1. I allow the claimant’s appeal. I set aside the decision of the Newcastle-upon-Tyne appeal tribunal dated 29 July 2003 and I refer the case to a differently constituted appeal tribunal for determination.

REASONS

2. The claimant had appealed against a decision of the Secretary of State superseding her award of incapacity benefit and deciding that she was not entitled to incapacity benefit with effect from 16 February 2003 because she did not satisfy a personal capability assessment. The tribunal found that she scored only 11 points in respect of physical descriptors and accordingly dismissed her appeal. She now appeals against the tribunal’s decision with my leave, challenging the tribunal’s findings in relation to the activities of either “sitting” or “rising from sitting” and “bending and kneeling”.

3. I say “either ‘sitting’ or ‘rising from sitting’” because the claimant refers to “sitting” but also submits that there is nothing in the descriptors referring to the use of solely one limb for support. That appears irrelevant to “sitting” but might be relevant to “rising from sitting”. I agree with the Secretary of State that there appears to be no error in the tribunal’s decision in respect of “sitting”. As regards “rising from sitting”, the statement of reasons for the tribunal’s decision says:

“In relation to the activity of rising, the appellant made no claim of any problem in this activity in her claim pack. No mention was made of any difficulty in rising either in the appellant’s submission or in the evidence on her behalf today. She was observed to rise by the Medical Officer without apparent problem. Descriptor 5(d) was accordingly scored.”

That is accurate. There was no evidence before the tribunal suggesting that the claimant could rise from sitting only if “holding on to something”. Accordingly, I am not satisfied that the tribunal erred in law with respect to either the activity of “sitting” or the activity of “rising from sitting”.

4. In relation to “bending and kneeling”, the descriptors are –

6(a) Cannot bend to touch his knees and straighten up again.

6(b) Cannot either bend or kneel, or bend and kneel as if to pick up a piece of paper from the floor and straighten up again.

6(c) Sometimes cannot either bend or kneel, or bend and kneel as if to pick up a piece of paper from the floor and straighten up again.

6(d) No problem with bending or kneeling.

5. The Secretary of State’s representative, Ms Jane Clark, helpfully sets out the issue of law in her written submission.

“The claimant [page 24], although choosing descriptor 6(c), implies that she is unable to stand up (after bending and kneeling) without support, suggesting that possibly descriptor 6(a) or 6(b) applies to her condition. The examining doctor, however, found the claimant to have no problem with bending and kneeling, but noted that she held the edge of the couch with one hand for support when rising [page 44]. The tribunal noted all this evidence but decided that descriptor 6(d) was applicable.

“In CSIB/12/96 it was held that, if support was needed to enable a person to straighten up after bending and kneeling, this has to be taken into account. Further, as was pointed out by the claimant, I agree that it is not relevant whether one or both limbs are used for gaining such support. It is my submission that the tribunal have failed to adopt the correct approach in determining the claimant’s ability to bend and kneel and that this amounts to an error of law.”

I accept that the claimant’s comments did suggest that descriptor 6(a) or, more probably, 6(b) might be appropriate, notwithstanding that she ticked the box for descriptor 6(c). The distinction is important because descriptor 6(c) scores only three points and would have made no difference to the outcome (as 15 points were required to satisfy the personal capability assessment), whereas descriptors 6(a) and 6(b) both score 15 points.

6. What the tribunal actually said was –

“The appellant in her claim pack had stated that sometimes she could not either bend or kneel. The Medical Officer in his detailed clinical examination had observed the appellant to be able to squat and rise up, holding the edge of the couch with one hand for support. The appellant’s hips and knees flexed and extended fully, and painlessly. The Tribunal accepted in full the clinical findings of the Medical officer, based as they were upon detailed and experienced medical examination carried out by him at the relevant time. Whilst the appellant in her submission had stated that she had needed to have support from the ‘bed’ to push herself up to a standing position at the time of the medical examination, the Tribunal noted the observation of the Medical Officer whereby the appellant had used only one hand on the edge of the couch to support herself, and was found to have full power and movement of her lower limbs. On her behalf her husband had stated that the appellant could recover objects from the floor albeit with support. On the balance of probabilities, descriptor 6(d) was scored in relation to this activity.”

7. It seems to me that, so far as the claimant’s ability to squat or kneel is concerned, Ms Clark is right and that the evidence and, indeed, the tribunal’s findings suggest that either descriptor 6(b) or descriptor 6(c) would be satisfied. The approach that an ability to carry out the function only with support is to be disregarded was taken in CIB/2945/00 as well as CSIB/12/96. In my judgment, the tribunal’s decision is therefore erroneous in point of law because it looks as though they accepted that the claimant did need support when straightening up after bending or kneeling and they regarded that support as irrelevant.

8. However, in addition to the findings recorded by the tribunal, the examining medical officer had found that the claimant was able to bend forward at the waist to pick something up. The decision-maker had relied upon that finding when calculating the claimant’s score. That is plainly a permissible approach and, had the tribunal taken it, their decision would have been unassailable. It is clear from R(IB) 3/02 that, even if the claimant could not rise from squatting very satisfactorily, it would have been sufficient that she could bend from the waist and reach the floor in that manner and then straighten up without support. In its context, “no problem with bending or kneeling” must be taken to mean “no problem with bending or kneeling such as would cause the claimant to satisfy one of the other descriptors”.

9. Ms Clark suggests that I should refer the case to a differently constituted appeal tribunal. Although the tribunal accepted the examining medical officer’s clinical findings, the claimant’s husband challenged the finding that she could bend from the waist to touch her toes and said she had a hip defect. He told the tribunal that she could retrieve something from the floor only with support. With some hesitation, I am prepared to accept that the tribunal’s findings and reasoning are not clear enough to enable me to make a finding on this issue on the papers and, therefore, I accept Ms Clark’s suggestion.